This Section 10 applies if Advisor provides investment management services or investment advice, within the meaning of ERISA Regulation 2510.3-21(a), with respect to any assets of Client’s Account that are:
(a) Held in an account that is part of an employee benefit plan described in section 3(3) of the Employee Retirement Income Security Act (an “ERISA Account”);
(b) Held in an account that is part of any other plan described in Section 4975(e)(1)(A) of the Internal Revenue Code of 1986, as amended (the “Code”), or
(c) Held in an individual retirement account or other account described in Code Sections 4975(e)(1)(B) through (F), (each, a “Retirement Account” and collectively, “Retirement Accounts”). Advisor represents that it is registered as an investment Advisor under the Investment Advisors Act of 1940.
The Client acknowledges the following with respect to such investment management services or investment advice:
(a) Such services are authorized under the governing documents for such Retirement Accounts.
(b) Advisor is acting as a “fiduciary” within the meaning of Section 3(21)(A) of ERISA and/or Section 4975(e)(3) of the Code, as the case may be, with respect to the provision of such services to Retirement Account assets.
(c) The Client acknowledges that Advisor’s investment selection shall be subject to the governing documents of such Retirement Accounts and in the case of an ERISA Account or other plan Account, may be limited to the investment alternatives provided under the plan of which such Account is a part.
(d) If Advisor is providing discretionary investment management services with respect to Client’s ERISA Account, then Client hereby appoints Advisor as an “investment manager” as defined in Section 3(38) of ERISA with respect to the ERISA Account assets, and Advisor hereby accepts the appointment and agrees to provide investment management services for the ERISA Account.
(e) In performing such services, Advisor does not act as, nor has it agreed to assume the duties of, a trustee or the administrator, and it has no discretion to interpret the Retirement Account governing documents, to determine eligibility or participation under the Retirement Account, or to take any action with respect to management (except as described in this Agreement), administration or other aspect of the Retirement Account.
(f) Advisor does not reasonably expect to receive any compensation, direct or indirect, for such services other than the compensation described in this Agreement. If Advisor receives any other compensation for such services, it will (A) offset that compensation against its stated fees, and (B) will disclose to Client the amount of such compensation, the services rendered for such compensation, the payer of such compensation and a description of its arrangement with the payer.
(g) In the case of an ERISA Account or other plan account, in the event the plan sponsor will not permit Advisor direct access to the Client’s plan assets to effect plan transactions, the Client acknowledges and understands (A) Advisor will not receive any communications from the plan sponsor or custodian, and it shall remain the Client’s exclusive obligation to notify Advisor of any changes in investment alternatives and restrictions pertaining to the assets; and (B) Advisor shall not be responsible for any costs, fees, damages, or penalties resulting from the Client’s failure to so notify the Advisor.
(h) Client independently made the decision to enter into this Agreement and was not influenced by Advisor’s status as a service provider under any other agreement.
(i) Client acknowledges that this Agreement contains the disclosure required by ERISA Regulation Section 2550.408b-2(c) (with respect to the provision of investment management services or investment advice to an ERISA Account) which disclosure Client has received reasonably in advance of entering into this Agreement.